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The Third Circuit in U.S. v. Mallory, No. 13-2025, held that once a suspect is arrested and the scene has been secured, the exigent circumstances have passed and the Fourth Amendment requirement for a search warrant reattaches.

Hope Lefeber

Philadelphia, Pennsylvania (PRWEB)October 30, 2014

The existence of exigent circumstances is one of the few exceptions to the Fourth Amendment requirement for a search warrant prior to any search or seizure. However, once the exigency is no longer present, a warrant is needed to continue the search. In UnitedStates v. Mallory, (13-2025), the Third Circuit considered what factors demonstrate that the exigency has subsided.

The record in the trial revealed that in the early hours of the morning, officers were responding to a dispatch call concerning a group of men standing outside a four-story home; the group allegedly included a hooded individual armed with a gun. The home belonged to Kamaal Mallory’s stepmother. While outside of the house, Mallory was speaking with a police officer when they noticed a weapon in his waistband. Appellant ran into the house and shut the door; officers pursued. Officers cleared the home and the family members were ordered to wait outside under supervision of an officer. The police then searched the home for Mallory and the weapon. He was eventually found hiding in a locked bathroom, was placed under arrest, and handcuffed. While escorting appellant outside, officers searched another section of the home and found a revolver. Mallory filed a motion to suppress the gun, which was granted by the trial court. The Government appealed.

The Court, in Mallory, noted that when determining if the warrantless search is justified, a court may consider, but is not limited to, the following factors: (1) the time that passes between the offense and the search; (2) the nature of the offense; (3) whether the search occurred prior to or at the same time as the suspect’s apprehension; (4) if the premises/scene is secure; (5) whether there are other individuals in the house/on the scene that are unaccounted for; (6) whether the suspect or anyone present is being aggressive or otherwise threatening to the officers; (7) whether anyone present could reach and use the weapon; and (8) the intrusiveness of the search. Based on these considerations, the Third Circuit held that in Mallory’s case, the exigency had passed and a warrant was required to continue any search of the house. Mallory had been arrested and the house was secure; the family members were outside under the watch of other officers; after the initial flight, Mallory did not resist arrest when officers found him hiding in the bathroom; and there was no evidence that the family knew where the gun was or was going to move the weapon. Therefore the exigency had passed with the intervening arrest and securing of the house, and the officers should have secured a warrant before searching further for the gun. The Third Circuit upheld the suppression of the weapon. Ms. Lefeber explains that this is a very significant case for the defense.

About Hope Lefeber:

In practice since 1979, Lefeber is an experienced and aggressive criminal defense attorney in Philadelphia. As a former Enforcement Attorney for the U.S. Securities & Exchange Commission, Lefeber uses the knowledge she gained while working for the government to best defend her clients facing serious state and federal charges related to drug offenses and white collar crime, including business and corporate fraud, mail and wire fraud, money laundering, financial and securities fraud, and tax fraud.

A member of the invitation-only National Trial Lawyers Top 100, Lefeber has been recognized by Thomson Reuters as a 2014 Super Lawyer. She has represented high-profile clients, published numerous articles, lectured on federal criminal law issues, taught Continuing Legal Education classes to other Philadelphia criminal defense attorneys and has been quoted by various media outlets, from TV news to print publications.